Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00368/2014
& OA/00369/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 June 2016
On 12 August 2016
And 5 July 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

SUCCESS [O] (1)
PEACE [O] (2)
(ANONYMITY ORDER NOT MADE)
Appellants

and

ENTRY CLEARANCE OFFICER
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellants: Ms Osezele, Sponsor
For the Respondent: Mr I Jarvis, Presenting Officer (7 June 2016)
Mr L Tarlow, Presenting Officer (5 July 2016)

DECISION AND REASONS
1. The appellants appeal with permission against the decision of First-tier Tribunal Judge R B L Prior promulgated on 8 October 2014. Permission to appeal was granted on 27 November 2014 by First-tier Tribunal Judge R A Cox. The appeal then came before the Upper Tribunal on 14 January 2015. In a decision promulgated on 11 February 2015, Deputy Upper Tribunal Judge Woodcraft dismissed the appeal. Subsequent to that, the Arden LJ granted permission to appeal to the Court of Appeal.
2. By a consent order sealed on 27 April 2016, the appeal to the Court of Appeal was allowed, and remitted to the Upper Tribunal for it to considered two specific issues:
(a) The extent to which the Appellants' physical and emotional needs were being met in Nigeria following the death of their grandmother, and any consequent impact on an analysis of paragraph 297 (i0(f) or the children's best interests
(b) The extent to which the decline in the grandmother's health prior to her death meant that their mother had acquired sole responsibility for their upbringing for the purposes of 297 (i) (e) even if she did not have such responsibility in the past.
3. It was on that basis that the appeal first came before me on 7 June 2016.
The appellants' case
4. The appellants are both citizens of Nigeria, born in 2001 and 1998 respectively. Their parents were married in 1998, later divorcing and re-marrying on 11 June 2011. Their mother ("the sponsor") has lived in the United Kingdom since 2006 initially as the spouse of an EEA national, and later obtained permanent residence on that basis. She was naturalised as a British Citizen in august 2013 and is self-employed as a Child Protection Social Worker. The father has been resident in the United Kingdom since 2006, albeit without leave.
5. The appellants had visited the United Kingdom in 2006, but returned to Nigeria. The sponsor's case is that she had thought that best for them, as she was studying and then working to provide for them. The lived with her mother whose health gradually failed; she died of a heart attack on 21 December 2013 the day after the appellants' applications for entry clearance, made on 23 October 2013, were refused
6. It is the appellant's case that, despite being cared for by their grandmother, their mother has had sole responsibility, her involvement in their care increasing as the grandmother became frail. Although there is an uncle (the sponsor's younger brother) he is not able to care for the children and, it appears, has developed his own problems since his mother's death.
7. The sponsor states that she has been in regular, daily telephone contact with the appellants, and has made the important decisions in their lives.
The respondent's case
8. The respondent's case, as set out in the notice of refusal, and supplemented in submissions, is that there was not sufficient evidence that the sponsor has had any day to day responsibility for the appellants; that there was a lack of evidence of visits or contact, and that there was insufficient evidence that there was serious and compelling family or other considerations making exclusion undesirable.
The hearing on 7 June 2016
9. The parties accepted, given that this is an appeal against a refusal of Entry Clearance, that it would not be possible for the Upper Tribunal to take into account the effect of the grandmother's death, given that that occurred after the date of decision.
10. I am satisfied that, as was accepted by the parties, and is set out tine Statement of Reasons endorsed by the Court of Appeal, that the First-tier Tribunal's decision involved the making of an error of law in that the judge failed to consider whether the appellant's mother had, in the light of the grandmother's failing health, acquired sole responsibility. It is, following Nmaju v ECO [2000] EWCA Civ 505, a relevant and important factor to consider a change in circumstances which may result in a change of responsibility. It is entirely possible for a parent to re-acquire sole responsibility if it has been lost. The decision of the First-tier Tribunal does not properly consider this issue, and it was entirely possible that, had the question been asked, it could have been resolved in the appellant's favour. There is no indication in the decision at [18] that the judge considered if there had been a change in circumstances, given it had been concluded that the sponsor supported the appellants financially [20]. It is also apparent that, as the sponsor sets out in her skeleton argument at [15]-[20] that some of the evidence had not properly been taken into account.
11. In the circumstances, I am satisfied that the error identified was capable of affecting the outcome and that, accordingly, the decision must be set aside. There being insufficient available to remake the decision, the appeal was adjourned.
The hearing on 5 July 2016
12. I heard evidence from the sponsor as well as submissions from her and Mr Tarlow.
13. The sponsor adopted her witness statement and the skeleton argument, that being in part an additional witness statement. She was then cross-examined.
Findings
14. The core issue in this appeal is whether the sponsor, as at the date of decision, has had sole responsibility for the appellants. There is no requirement for sole responsibility to have been exercised for a specific length of time, and it is evident from the case law, that it may be that case that at times no person has sole responsibility for children, but, as this issue is fact sensitive and family circumstances are fluid, at other times, sole responsibility may, having been lost, vest once again in a parent.
15. As was noted in TD (Paragraph 297(i)(e): "sole responsibility")Yemen [2006] UKAIT 00049at [7]:
7. The cases struggle with the obvious difficulty that where there is a UK based parent - the sponsor - whom the child is seeking to join for settlement there will inevitably be others in the country of origin who de facto 'look after' the child. Usually these are relatives such as grandparents or aunts and uncles but they could, as in this case, be the other parent of the child concerned. As a matter of common sense, some responsibility for the child's life must rest with the carer in the country of origin
16. TD (Yemen) makes it clear that while financial support is relevant, it is not determinative. It should also be noted what is said at [34]:
34. These cases are largely concerned with the issue of "sole responsibility" arising between a UK-parent and relatives who are looking after the child in the country of origin. In many of the cases, the other parent has disappeared from the child's life totally or plays so little part as to have, in effect, abdicated any responsibility for its upbringing. What emerges is a concept of "authority" or "control" over a child's upbringing which derives from the natural social and legal role of an individual as a parent. Whilst others may, by force of circumstances, look after a child, it may be that they are doing so only on behalf of the child's parent. The struggle in the case law is to identify when the parent's responsibility has been relinquished in part or whole to another such that it should be said that there is shared rather than sole responsibility. By contrast, where both parents are active in the child's life, the involvement of the parent in the country of origin is significant - perhaps crucial - in assessing whether the parent in the UK has "sole responsibility" for the child.
17. It is important to note also what was said in TD Yemen at [49]-[51]
1. Where one parent has disappeared from the child's life and so relinquished or abdicated his (or her) responsibility for the child, the starting point must be that it is the remaining active parent who has "sole responsibility" for the child. The fact that the remaining active parent is in the UK makes no difference to this. Of course, the geographical separation of the parent from the child means that the day-to-day care of the child will necessarily be undertaken by others - relatives or friends abroad - who look after the child. Here, the issue under the immigration rules is whether the UK-based parent has, in practice, allowed the parental responsibility for the child to be shared with the carer abroad. This is, of course, the question we see most frequently in the case law.
1. The cases, particularly Nmaju and Cenir in the Court of Appeal, make clear that the touchstone of "sole responsibility" is the continuing control and direction by the parent in the UK in respect of the "important decisions" about the child's upbringing. The fact that day-to-day decision-making for a child - such as "getting the child to school safely and on time, or putting the child to bed, or seeing what it has for breakfast, or that it cleans its teeth, or has enough clothing, and so forth" (Ramos, per Dillon LJ at p 151) - rests with the carers abroad is not conclusive of the issue of "sole responsibility". However, if the UK-based parent has allowed the carer abroad to make some "important decisions" in the child's upbringing, then it may readily be said that the responsibility for the child has become "shared".
1. In reaching a decision on what is a fact-rich issue, it is important to take account of evidence of any contact between the parent and the carer in respect of important decisions to be taken about the child and its upbringing. The availability of modern communications technology may reduce the impact of distance alone on a UK parent's ability to be consulted (and therefore decide) about the child's upbringing in another country. The length, and cause, of the separation of parent and child and the reasons for its continuation may shed some light on the role played by the carer abroad. Likewise, it may be helpful to look at the financial support provided by the parent and, in particular, its absence may be very telling.
18. It is not submitted by the respondent in this case that the father, who is present in the United Kingdom, shares responsibility for the children.
19. The issue before me is, in light of the error of law found, and the observations made in the Statement of Reasons to remake the decisions with respect to sole responsibility and, if relevant, whether there are there are serious and compelling family or other considerations which make the exclusion of the appellants undesirable and suitable arrangements have been made for their care (paragraph 297 (i) (f)).
20. The starting point for consideration of the case is the decision of Judge Prior who did not fined the sponsor to be a satisfactory witness, in particular with regard to the appellants' educational achievements, noting in particular [16] a lack of term reports. The judge noted also [17] - [18] an apparent lack of commitment as well as delay in seeking entry clearance for the appellants.
21. The sponsor has dealt with these observations in her witness statements at some length. She explained (and this was not challenged0 that it was she who had chosen their schools, and that term reports had been lost when the grandmother died. She states also that, in Nigeria, it was not common for a head teacher to have contact with parents unless there was a problem; the link teacher was Mrs Enahoro, hence why she was noted in the evidence.
22. The sponsor also states, again unchallenged, that she had made all the decisions in respect of the appellants' healthcare, and pays for treatment. She also ensured that the children had been baptised as Pentecostals, and had proper Christian instruction. With regard to her brother, she stated that he did assist the grandmother as she had been illiterate.
23. Asked about the situation in relation to the grandmother's health in the last few months before her death, the sponsor said that the appellants had in fact become her carers. That had been difficult for all of them, and that initially, the grandmother had tried to conceal this.
24. Cross-examined, the sponsor said that her daughter had called her to tek her that the granmother was so frail that she was unable to go to the toilet without help, and that this was due to problems with her legs. It also became clear that she may have begun to suffer from dementia, this being around 3-4 weeks before the application. She said the appellants had tried to help, but it was difficult to look after a sick person.
25. The sponsor said she could not move back to Nigeria, as she had established herself here. She said her younger brother, now only 27, is struggling to cope since their mother died.
26. The sponsor also said that when she had left the children with her mother, she had thought that she was doing the best for them. She would not have wanted her children to be unhappy, and that she had educated herself, and worked hard to provide for them.
27. Mr Tarlow relied on the refusal notices. Asked if he had any submissions to add in respect of the second issue identified in the Statement of Reasons, he said he had nothing to add.
28. Having heard evidence from the sponsor, which was subject to cross-examination, I am satisfied that her involvement with her children was greater than that identified by Judge Prior. Albeit that the evidence now given is in part in response to that decision, I am satisfied that it is supported at least in part by the documents put before the First-tier Tribunal. The care shown for the appellants' health and spiritual development was not addressed in any detail, and I consider that these were and are significant indicators of care and control shown by the sponsor.
29. I am satisfied by the detailed and clear evidence about the deterioration of the grandmother's health, that the sponsor's testimony on this point had the ring of truth. It was spontaneously and candidly given and was not disturbed by cross-examination, nor indeed was the evidence on this issue challenged in any material way in submissions.
30. Taking these factors into account, and viewing the evidence as a whole; and, bearing in mind the doubts of Judge Prior, I find that by the date of decision, the situation in Nigeria had changed significantly in the preceding 3 to 4 months. I am satisfied that there had been a marked deterioration in the grandmother's health to the extent that rather than being a carer, she was being cared for in part by the appellants, albeit at the behest and under the direction of the sponsor. This was, I find, a significant change; even assuming the grandmother had shared responsibility, she was no longer doing so, being in reality close to being dependent on the appellants.
31. The factual matrix in these appeals is, unusual, if not unique. It changed significantly shortly before the date of decision such that, by the date of decision, the appellants' mother had had sole responsibility for them. It is not submitted by the respondent that the father has any responsibility for the appellants, nor am I satisfied in the light of the evidence and earlier findings that he has responsibility for them as defined.
32. For the avoidance of doubt, no submission has been made to me that the appellants did not meet the requirements of the Immigration Rules apart from paragraph 297 (i) (e). I find that that requirement was met at the date of decision. It is therefore unnecessary for me to consider whether the requirements of paragraph 297 (i)(f) are met. Further, I am satisfied by the evidence before me, none of which is challenged, that all the other requirements of the Immigration Rules are met. I am further satisfied that, notwithstanding the lapse of time, that this continues to be the case, and that in particular the sponsor's siblings are unable to take responsibility for the appellants, and that the sponsor continues to exercise sole responsibility for them.
33. For these reasons, I am satisfied that the appeal should be allowed on the basis that the appellants meet, and continue to meet, the requirements of the Immigration Rules, there being, on the evidence before me, no indication of any material change in the circumstances of the sponsor or the appellants since the date of decision. The death of the grandmother, if anything, strengthens the claim that their mother has sole responsibility for them.

SUMMARY OF CONCLUSIONS AND DIRECTIONS.
1. The decision of the First-tier Tribunal did involve the making of an error of law and I set it aside.
2. I remake the appeal by allowing it under the Immigration Rules.

Signed Date: 11 August 2016

Upper Tribunal Judge Rintoul